Tan Sue-Ann Melissa v Lim Siang Bok Dennis

• Judge: Chao Hick Tin JA
• Judgment Date: 28 June 2004
• Neutral Citation: [2004] SGCA 27
• Citation: [2004] SGCA 27
• Defendant Counsel: S Thulasidas (Ling Das and Partners)
• Published date: 30 June 2004
• Plaintiff Counsel: Lawrence Fong (Dominion LLC)
• Date: 28 June 2004
• Docket Number: Civil Appeal No 111 of 2003
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether this amounted to material change in circumstances entitling court to vary maintenance order,Application to vary consent order,Wife,Section 118 Women's Charter (Cap 353, 1997 Rev Ed),Maintenance,Family Law,Former husband consenting to pay sum of money as maintenance on assumption that his earnings would subsequently increase,Husband subsequently unable to meet payments as assumption proved to be unachievable despite reasonable efforts,Wife aware of assumption

28 June 2004

Yong Pung How CJ (delivering the judgment of the court):

1 This was an appeal against the decision of Lai Kew Chai J (“the judge”) to vary a consent order of court dated 24 April 2002 (“the second Consent Order”) requiring the respondent to pay the appellant, his former wife, maintenance of $2,000 per month. Exercising his power to vary a subsisting order for maintenance under s 118 of the Women’s Charter (Cap 353, 1997 Rev Ed) (“the Women’s Charter”), the judge reduced the amount of maintenance payable to $1,100 per month on the basis that the respondent had shown a material adverse change in circumstances. At the end of the hearing before us, we dismissed the appeal.

The factual background

2 The parties were married on 17 May 1990. They ended their union some eight years later on 30 July 1998. There are no children of the marriage.

3 Pursuant to the decree nisi dissolving the marriage, a consent order of court was recorded on 27 January 1999 (“the first Consent Order”) laying out the parties’ arrangements with respect to the ancillary matters of division of matrimonial assets and maintenance. On the issue of maintenance, the respondent was ordered to pay a sum of $2,200 per month to the appellant from January 1999 to June 2000 and a sum of $2,500 per month from July 2000 onwards. At the time of the recording of the first Consent Order, the respondent was earning more than $7,000 per month as a partner in the law firm, M/s Chan Kwek & Chong.

4 On 27 March 2001, the respondent applied to court to revise the terms of the first Consent Order, which application was opposed by the appellant. By this time, the respondent’s financial position had deteriorated considerably owing to the occurrence of a series of unfortunate events that ensued shortly after the recording of the first Consent Order. The respondent’s financial woes began when he sustained a serious back injury in June 1999 which led to his departure from the legal profession three months later. The respondent then remained unemployed for close to one year from November 1999 to August 2000, following major surgery to his spine in October 1999. It was only in September 2000 that he commenced work as a corporate manager at Earth Essence Holdings Pte Ltd (“Earth Essence”) at a gross monthly salary of $4,000 and a take-home pay of $3,200. It was against this factual backdrop that the respondent sought an adjustment of the first Consent Order.

5 The parties had already filed all their respective affidavits in the matter when they decided to enter into a fresh agreement (“the agreement”) instead. The respondent’s obligations under the new arrangement included:

(a) the payment of the sum of $2,000 a month to the appellant as maintenance with effect from 1 May 2002; and

(b) the payment of the sum of $10,000 on 31 December 2002 and another $10,000 on 31 December 2003 to the appellant in full and final settlement of the amounts due in the division of the matrimonial assets.

The above variations to the first Consent Order were encapsulated in the second Consent Order of 24 April 2002, which formed the subject matter of the present appeal.

6 Unfortunately, the respondent’s financial standing had not improved by April 2002. In fact, the respondent was jobless for two months from January 2002 when Earth Essence fell upon hard times and sought the respondent’s resignation. When the second Consent Order was made in April 2002, the respondent had just resumed the practice of law after a break of more than three years in M/s Ling Das & Partners (the respondent’s solicitors in the present appeal) at a monthly salary of $3,000.

7 For the next 13 months, the respondent endeavoured to discharge his obligations under the second Consent Order. However, it soon became apparent that the respondent had made a commitment which he could not fulfil. From as early as June 2002, the respondent had to constantly request that the appellant afford him more time to come up with the monthly payments.

8 Not surprisingly, the respondent struggled to meet the $2,000 maintenance on his income of $3,000 per month. Contrary to his initial expectations that his income would improve substantially upon re-entering the legal profession, the respondent’s salary remained virtually stagnant. In fact, he was earning only $3,500 a month at the time the appeal was heard before the High Court in September 2003. The respondent explained that owing to the September 11 crisis, the SARS outbreak and the generally unfavourable economic conditions, he was unable to generate the income he had initially anticipated. His performance was also hampered by his back injury from which he never completely recovered. To his dismay, he found that he could only work three to four days a week on average.

9 The respondent also gave evidence that he had borrowed $28,000 from the partners of M/s Ling Das & Partners to assist him in the payment of the monthly maintenance and the $10,000 instalment due on 31 December 2002. On the evidence, the respondent had chalked up a debt of more than $80,000 to several credit card companies and the law firm’s partners by the time of the appeal before the High Court.

10 As the respondent could not afford to allow the existing arrangement to continue, he filed an application (by way of Summons in Chambers No 50300 of 2003) on 29 May 2003 for an order that he be allowed to cease paying the appellant altogether. In the alternative, he asked that the amount of monthly maintenance payable be reduced to $500.

11 The respondent’s application was heard by District Judge Tan Peck Cheng on 18 July 2003. When the district judge dismissed his application, the respondent appealed to the High Court.

The decision of the High Court

12 The appeal was heard on 10 September 2003. At the conclusion of the hearing, the judge allowed the respondent’s appeal in part and ordered that the maintenance payable under the second Consent Order be varied from $2,000 to $1,100 a month. The judge was of the view that, on the evidence, the respondent could only afford to pay the reduced amount of $1,100 every month. In arriving at this conclusion, the judge accepted the respondent’s assertion that even though he had willingly agreed to pay the appellant $2,000 a month, this was by no means a reflection of his earning capacity. The respondent’s solicitors’ letter of 22 April 2002 to the appellant’s solicitors clearly provided that the respondent’s promise to pay the monthly maintenance of $2,000 was “not to be regarded as a reflection of [the respondent’s] earning capacity or income”. Instead, it was to be looked upon as a sum the respondent was prepared to pay towards a global settlement of the ancillary issues of maintenance, arrears of maintenance and division of matrimonial...